The cases N.D. and N.T. vs Spain and Doumbe Nnabuchi vs. Spain were adjudicated by the European Court of Human rights (ECtHR) and the case D.D. vs Spain decided by the UN Committee on the Rights of the Child. They exemplify particularly well how contemporary processes of racialization are manifested in the context of legal interventions. In the first case, the ECtHR ignored the reality of racial profiling at the official border-crossing points and claimed that the applicants should have taken a regular route instead of climbing the fences. A new legal exception to the application of the prohibition of collective expulsions was created in case migrants arrive in an organized group and use force, also called the ‘own culpable conduct’ test. The case shows how the court refuses to acknowledge the effects of anti-black racism on the chances of migrants to reach regular border crossing points. While arguing in a color-blind manner, the court also clearly racializes black migrants by constructing them as violent and malignantly organized in contrast to the border guards who are claimed to be in need of defense. In the second case, the applicant was deemed to lie about their identity although a video was presented to the court in which the applicant was shown to be beaten. The refusal of the court to acknowledge the applicant as the person who was subject to state violence shows how racialized people on the move are principally suspected to be liars and the burden of proof is very high on them for the court to accept wrongs on the part of the state. The last case was decided in favor of the rights of the child. This, however, only shows that legal interventions are more likely to lead to positive responses when they favor narratives that replicate a proximity of the applicants to whiteness, respectability and innocence. My point is to show in which sense the way that questions around border violence are discussed in the legal realm risks reinforcing a racist and colonial architecture, being historically amnesiac and foreclosing broader structural transformation.
Nerges Azizi is a PhD student in Law at Birkbeck, University of London. Nerges' PhD deals with the role of legal interventions against European border violence. Alongside the PhD, Nerges works as a freelance translator with refugees in the fields of mental health and queer rights.
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